JAMES SEIBER AND ERMA SEIBER, HIS WIFE v. JOHN A. STOVALL
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002111-MR
JAMES SEIBER AND
ERMA SEIBER, HIS WIFE
APPELLANTS
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER GILL, JUDGE
ACTION NO. 99-CI-00162
v.
JOHN A. STOVALL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
BARBER, JUDGE:
Appellants, James and Erma Seiber (“Seibers”)
seek reversal of a judgment of the Todd Circuit Court rescinding
a contract for the sale of land that they sought to purchase from
the Appellee, John A. Stovall (“Stovall”).
The trial court
determined that there was no meeting of the minds between the
parties on the number of acres described in the sales agreement.
The Seibers contend that they were entitled to specific
performance with an abatement of the purchase price.
error, we affirm.
Finding no
The parties entered into a Deposit and Sales Agreement
dated July 1, 1999, which reflects that the Seibers agreed to
purchase “178 Acres K owned by John A. Stovall” for the total
purchase price of $71,200.00.
Thereafter, the Seibers learned
that “it was highly questionable” that the tract contained that
many acres.
On November 3, 1999, the Seibers filed a complaint in
the Todd Circuit Court against Stovall.
They offered to purchase
what had been represented to them to be “178 plus or minus acres
owned by John A. Stovall,” and claimed that their offer to
purchase was “based upon their reliance upon the representation
. . . that the property contained 178 acres.”
The Seibers
attached a copy of a deed of conveyance to Stovall, dated
September 9, 1997; the description in Stovall’s deed states that
the property contains 178 acres, “more or less.”
The Seibers
alleged that they subsequently had a title examination and review
of the description of the subject property which revealed less
than 100 acres.
The Seibers maintained that they were “ready
willing and able to purchase the 95 acres which appear to be
present based upon the agreed upon purchase price of Four Hundred
Dollars ($400.00) per acre.”
The Seibers requested reformation
of the contract and that Stovall be ordered to convey the
property to them in exchange for $38,000.00, less credit for the
$5,000.00 deposit they had previously made.
On July 11, 2000, following a bench trial, the trial
court entered Findings of Fact and Conclusions of Law:
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At the time the parties signed the July 1,
1999 contract, they thought the farm
contained approximately 178 acres.
At trial, plaintiffs were of the opinion that
the farm contained substantially less than
178 acres and defendant did not offer proof
to the contrary.
Plaintiffs were of the opinion they were
negotiating for the purchase of the farm on a
per acre basis and although defendant’s agent
(Mike Miller of Trademark Land Company) using
plaintiffs’ figures, computed the selling
price by multiplying the number of acres
(178) times $400.00 (the price plaintiffs
were willing to pay per acre), the farm was
actually sold in gross. This conclusion is
inevitable because the contract did not
contain a mechanism (such as a plan for
having the property surveyed) for arriving at
a per acre sales price. Furthermore,
plaintiffs did not offer any evidence that
such a plan had been contemplated or
suggested.
The court concluded that the “Deposit Receipt and Sales
Agreement” dated July 1, 1999, between plaintiffs and defendant
should be rescinded because the plaintiffs and the defendant did
not have a meeting of the minds on the number of acres described
therein.
On July 11, 2000, the court entered final judgment.
On
July 21, 2000, the Seibers filed a motion to vacate which was
denied by order entered August 16, 2000.
The Seibers filed a
notice of appeal to this Court on September 5, 2000.
On appeal, the Seibers contend that they were entitled
to specific performance with an abatement of the purchase price.
Specific performance of a contract is not granted as a matter of
right, but is a matter of the reasonable discretion of the court
to be exercised according to the facts of each case.
Western
Kentucky Coal Co. v. Nourse, Ky., 320 S.W.2d 311 (1959).
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The Seibers rely upon Harrison v. Talbot, 32 Ky. 258
(1834).
In Harrison, Harrison sold a tract of land to Talbot
for $6,000.00.
The land was described by its boundaries and
designated as containing four hundred acres.
After Talbot was in
possession of the land, a survey established that the boundary
contained 490 acres.
Talbot filed a bill in chancery to compel
conveyance of the entire tract for the stipulated price of
$6,000.00.
Harrison contended that the sale was not by the tract
in gross but by the acre at $15.00 per acre; Harrison proposed to
make a title to either 400 acres for $6,000.00 or to the 490
acres for proportionate consideration.
The circuit court decreed
a specific execution of the contract for the entire tract of 490
acres upon full payment of the stipulated consideration of
$6,000.00.
The former Court of Appeals reversed and remanded
with instructions to dismiss the complaint and “remit Talbot to
his legal right and remedy,” unless he agreed to take a
conveyance for 400 acres for the original consideration of
$6,000.00 or to take a conveyance of the entire tract on payment
for the surplus at the rate of $15.00 per acre.
The Court of
Appeals dismissed Harrison’s cross-bill “because he cannot . . .
compel a specific execution of the contract, varied or modified
by parol evidence, nor otherwise than according to the import and
effect of the written memorial of the sale.”
Id. at 268.
(Emphasis added.)
Bush v. Putty, Ky. App., 566 S.W.2d 819 (1977), cited
by the Seibers, did not decide the question of whether or not
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specific performance with an abatement of purchase price is a
proper remedy in Kentucky.
Wiedeman v. Brown, 307 Ky. 231, 210
S.W.2d 764 (1948), and Wallace v. Cummins, Ky., 334 S.W.2d 904
(1960), also cited by the Seibers, have no bearing upon whether
the trial court should have ordered specific performance in this
case.
Wiedeman involved determination of the fair market value
of a shortage discovered after a farm was conveyed.
Wallace also
involved a shortage discovered after a farm was conveyed.
An
advisory jury found that neither party knew the correct acreage
of the tract, that the mention of “90 acres more or less” was
made only for the purpose of description, and that the parties
intended to risk the contingency of quantity.
The court
concluded that the statement of acreage in the contract of sale
and deed of conveyance was not binding on either party.
The high
court affirmed, having determined that there was ample proof to
support the finding that the sale was in gross.
Where there has been no meeting of the minds specific
performance is not a proper remedy in Kentucky .
In McGowan v.
Shearer, 176 Ky. 312, 195 S.W. 485 (1917), the Court held that it
was error for the circuit court to adjudge a specific performance
where the parties had failed to agree upon an essential element
of a contract - its subject matter.
In McGowan, the would-be
buyer sued to enforce specific performance of what he claimed to
be a valid executory contract for the sale of a tract of land.
The dispute involved the true location of a dividing line.
The
court held that there can be no enforcement of a contract when
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the minds of the parties fail to meet upon any essential element,
particularly the subject matter.
To consummate a binding contract for the sale
of land, as in the case of other contracts,
there must be a meeting of the minds of the
parties or mutual assent to the same thing,
and all material terms and conditions of the
contract, including a certainty of the
subject matter, must be agreed on. [Citation
omitted.] [E]quity will afford relief by
rescission to either party if there was a
mutual mistake, based upon ignorance or
misapprehension, as to a material thing
connected with the subject matter or
essential in the inducement to or formation
of the contract or involving the entire
consideration. The mistake is so classified
if the contract would not have been made had
the truth been known to the parties. In
relation to a sale and purchase of land a
mistake as to the quantity is deemed
equivalent to a mistake in the existence of a
material part of the subject of the contract
and an injured party is entitled to relief.
[Citation omitted.]
. . . .
[T]here was no meeting of the minds on this
material part of the subject matter of the
contract. The transaction being executory, it
is peculiarly one for the interposition of
equity to rescind and restore the parties to
their original status.
McGeorge v. White, 295 Ky. 367, 174 S.W.2d
532, 533-34.
The judgment of the trial court is affirmed.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Harold M. Johns
Elkton, Kentucky
B.R. Paxton
Paxton, King & Creager
Central City, Kentucky
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